Defendant Did Not Give Aid Negligently Where He Failed to Give Any Aid

The plaintiff, Tina Miller, mother and special administrator of Kyle Christian sued several people for negligently aiding her son Kyle who died after a heroin overdose. The plaintiff claimed that the defendant voluntarily undertook the duty to help Kyle, but did so negligently, and as a result, Kyle Christian died.


Christian, and a couple of associates, Moors and Hecox, started using heroin in the spring of 2006. To finance their heroin habit, Christian, Moors, and Hecox were stealing copper out of new construction homes and from stores. On the day Kyle Christian died, the group went to Kyle’s garage where he had some copper and sold the copper to a scrap yard. With the money the group bought six bags of heroin and Kyle ingested two bags of heroin. At some point Moors and Hecox noticed that Kyle was pale, and that his breathing was abnormal. Hecox began giving Kyle CPR. The group then drove to the house of another associate, Brian Hoshaw, to ask Hoshaw to check on Kyle as Hoshaw had seen Kyle overdose before and had experience with overdosing. The tree soon left Hoshaw’s house and went to a restaurant, called Spring Garden.

The three received a call from one of the defendants and his girlfriend who joined them at Spring Garden. While they were in the restaurant drinking coffee, Kyle was sitting in his car. Hecox, Moors, one of the defendants and his girlfriend all did heroin in the defendant’s car. According to the court, the defendant’s interaction with Kyle consisted of the following: (1) The defendant and his girlfriend knew that Kyle had taken too much heroin and was overdosing. (2) The defendant asked about Kyle’s condition. (3) He knew Hecox had given Kyle CPR. (4) He walked to Kyle’s car, opened the door, observed Kyle, and “possibly” entered the car. (5) The group discussed Kyle’s condition, including what should be done about it. (6) While having coffee, the defendant repeatedly looked out the window to check on Kyle. (7) After the group left the restaurant in the defendant’s car, he asked if Kyle was okay and the group discussed calling an ambulance but did not call an ambulance.

Kyle died that evening and his mother sued on behalf of his estate for wrongful death. The plaintiff argued that The defendant’s actions constituted voluntary undertaking to aid Kyle, which The defendant rendered negligently and as a result Kyle died.

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The plaintiff analogized her case with a somewhat similar case, Wakulich v. Mraz, 203 Ill. 2d 223, 243 (2003) where the court found that defendant’s voluntary undertaking to aid the decedent created a duty. In that case, the decedent, a 16-year old female, consumed a quart of a liquor at the encouragement of two of the defendants. The decedent lost consciousness. Two of the defendants placed her in the family room and observed that she was vomiting and making gurgling noises. Subsequently, they removed her vomit-soaked blouse and put a pillow under her head to keep her from choking. The defendants refused to drive her home or contact her parents. Further, they did not seek medical attention and kept others from calling for medical assistance. The decedent died the next day.

The court in the plaintiff’s case found that facts of Wakulich are distinguishable. In the plaintiff’s case, the defendant did not encourage Kyle to consume heroin, while the defendants in Wakulich encouraged the decedent to consume alcohol. Also, the defendants in Wakulich moved the decedent, cleaned her up, and placed a pillow under her head. At most, according to Hecox, defendant “possibly” got into Kyle’s car. Beyond that possibility, defendant had no physical contact with Kyle (indeed, there is no evidence that defendant did anything once inside the car, assuming he entered it). While both defendant and the defendants in Wakulich did not seek medical assistance, only the defendants in Wakulich prevented others from seeking it. The defendant did not dissuade anyone from seeking outside aid.

The court noted that the plaintiff’s evidence fits into three categories, none of which were sufficient to hold the defendant liable: defendant knew the gravity of Kyle’s condition; defendant investigated Kyle’s condition by observing Kyle; and defendant spoke with the group about Kyle’s condition. Defendant did not, however, actually do anything about Kyle’s condition-much less do it negligently.

The court concluded that there is no evidence to support liability stemming from voluntary undertaking in this case. The court noted that the defendant did not render aid negligently; he rendered no aid at all. This constitutes nonfeasance and to survive summary judgment, plaintiff must show that the decedent relied on the defendant to render aid. The court could not find any evidence that the decedent relied on the defendant to provide aid. Therefore, the court decided that there is no issue of material fact as to whether the defendant engaged in a voluntary undertaking such that he owed Kyle a duty of care and also there is no issue of material fact regarding the question of reliance. As such, the appellate court affirmed the lower court’s grant of summary judgment in favor of defendant.

Key Points
The court relied on two sections of the Restatement (Second) of Torts. Section 323, provides as follows:

A person who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance
Additionally, section 324, provides:
One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or (b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.

The case is Miller v. Hecox et al. 2012 IL App (2d) 110546 (May 10, 2012)

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